Marcellus consensus still eluding W.Va. lawmakers

CHARLESTON, W.Va. -- Two meetings this week should determine whether West Virginia lawmakers will tackle Marcellus Shale drilling rules this year, but the main players involved in the months-long quest for compromise appear as divided as ever.

A special House-Senate committee plans to debate a final handful of amendments to its draft Marcellus bill Monday. The legislators will then likely decide Wednesday whether to endorse the measure.

Gov. Earl Ray Tomblin has said he's ready to convene a special session for a Marcellus bill that can pass both chambers. But lingering disputes over the key issues that derailed legislation during this year's regular session -- permit fees, water protections, surface owner rights and in-state job creation, among others -- threaten to scuttle the latest effort.

"If the bill does not come out Wednesday, then in my opinion the chances of a special session this year is zero," said Delegate Tim Manchin, D-Marion and the committee's House chairman. He added, "It will depend on making sure that members are there, and it will depend on people wanting to get it done ... . If what [critics] want to do is talk the bill to death, then it will die."

Senate Co-Chair Doug Facemire sounded somewhat more optimistic, pinning the bill's chances on weaving any amendments approved Monday into the bill in time for consideration Wednesday. But the Braxton County Democrat also acknowledged the continuing disagreements among the industry, environmental advocates, and the owners of surface property at or near well sites and access roads.

"I told Delegate Manchin, at least we've accomplished one thing. We've not made anybody happy," Facemire said. "But I honestly believe that out of the 10 members of this committee, everybody's intent was to get the best bill that protects the environment and the residents while allowing the industry to get to work."

Tomblin also has concerns with the bill, Chief of Staff Rob Alsop said Sunday. As an example, Alsop cited a provision addressing the casing of a gas well's walls with cement to prevent leaks. Supporters of this language say it's borrowed from neighboring Pennsylvania, a leader in Marcellus drilling. Echoing an industry objection, Alsop said it does not allow for evolving technology.

"Given the kind of amendments that have been passed, we do believe there will be changes that need to be done," Alsop said.

Alsop also said that Tomblin is pleased with the committee's progress, and hopes to resolve his concerns with legislative leaders over the next couple of weeks -- if a final bill emerges.

Manchin had noted Friday that the committee loosened the cement casing provision from a detailed standard to an offering of guidance to regulators, but said that industry continues to oppose it. The divide over this provision typifies the status of the draft bill.

For more than a year, West Virginia has pursued regulations for developing its share of what's considered the nation's largest-known natural gas reservoir. The prehistoric rock formation sits a mile below the surface of several states. To tap the gas, operators usually drill wells horizontally and then blast the shale with a high-volume mix of water, sand and chemicals.

But the resulting bid to balance the pursuit of this energy source with the resulting environmental and surface owner concerns helped derail a regulatory bill during the year's regular legislative session. The state Department of Environmental Protection issued an emergency rule this summer on orders from Tomblin. Most involved in the issue say existing law limited that rule's reach, while environmental and surface owner interests complain that it could have been stronger.

David McMahon of the West Virginia Surface Owners' Rights Organization does not believe the committee will advance a bill.

"The interim process with the legislators in town irregularly for only short meetings is just not the right way to get comprehensive, complex, final legislation done," McMahon said.

McMahon has long lobbied to bring gas drilling and Marcellus issues before lawmakers and has often sparred with industry figures on these issues. He credits Manchin and the committee's other House members for their efforts. Questioning whether the industry's large and small operators even agree on some issues, McMahon said that "a bill that only contains what every member of the industry will agree to is not good for the citizen surface owners and the environment."

Two key industry trade groups, the state's Independent Oil and Natural Gas Operators and the West Virginia Oil and Natural Gas Association, have each written committee members to outline their concerns with several of the amendments previously added to the bill.

DeMarco said his group's objections to the bill go beyond some of the key sticking points, but also apply to the committee's decision to focus on the Marcellus field.

"That's one formation," DeMarco said. "If we get ready to drill into the Utica, are we going to have to write a whole new set of rules?"

Don Garvin of the West Virginia Environmental Council cited the industry's objections to question whether the draft bill can clear the committee. Garvin also said the bill falls short in such areas as withdrawals from area water supplies for hydraulic fracturing, also called fracking, as well as the disposal of frackwater and the potential impact on public health.

"The bill's far from complete, in our opinion. You never get everything you want, but at what point do you say, 'OK go ahead?'" Garvin said. "It's looking more and more like we're going to be back at square one, or some new square, come January. Which I dread."

West Virginia lawmakers aren't the only ones examining Marcellus-related issues. U.S. Sen. Joe Manchin, D-W.Va. and Tomblin's predecessor as governor, is holding a field hearing Monday on the topic, as a member of the Senate's Energy and Natural Resources Committee. That hearing, at Charleston's Robert C. Byrd U.S. Courthouse, will feature Garvin, Facemire and Tim Manchin, the senator's cousin, among its 11 witnesses.